Where an attorney's representation of a claimant in concurrent claims
under titles II and XVI of the Social Security Act (the Act) leads to
favorable decisions in both claims, held, the attorney need submit
only one petition for approval of a fee for services rendered in both
claims, and the Social Security Administration (SSA) need determine only
one fee for the combined services in both claims. Further held, the
authorized fee can be paid directly to the attorney out of the claimant's
past-due title II benefits, except for that portion of the fee (if any)
attributable to services that were rendered exclusively in connection with
the title XVI claim.

The claimant, C, applied concurrently for disability insurance benefits
and for supplemental security income (SSI) benefits as a disabled
individual. Following SSA's denial of those claims, C appointed an
attorney, A, who filed a request for reconsideration on C's behalf. Upon
reconsideration, SSA affirmed the denial of both claims. A then filed a
request for a hearing before an administrative law judge, following which
the claims were remanded to the State disability determination service for
further review. As a result of this review, the denials were reversed and
C was found entitled to disability insurance benefits and eligible for SSI
benefits.

Following the award of benefits to his client, A filed a petition with SSA
for approval and payment of a fee for the services he performed in
connection with C's claims. On his petition, A itemized all services he
performed in connection with both claims.

The issues to be decided in this case are:

Whether in concurrent title II-title XVI claims the
attorney-representative may file a single fee petition for all services
performed in connection with such claims;

Whether SSA may authorize a single fee for such services; and

Whether such single fee can be paid directly to an attorney-representative
from the claimant's past-due title II benefits.

Section 206(a) of the Act provides, in pertinent part, that:

"The Secretary may, by the rule and regulation, prescribe the maximum fees
which may be charged for services performed in connection with any claim
before the Secretary under this title ..."

The identical provision appears in section 1631(d)(2) of the Act. However,
the Act is silent as to the determination of a fee for services in
connection with concurrent title II-title XVI claims.

In claims under title II, § 404.1720(b)(1) of Regulations No. 4 provides
that an attorney-representative must file a written request with SSA for
approval of a fee before he or she may charge or receive a fee for
services, and § 404.1725(a) of Regulations No. 4 specifies what
information the attorney-representative must include on a request for
approval of a fee. The same provisions in claims under title XVI are
provided in §§ 4l6.1520(b)(1) and 416.1525(a) of Regulations No. 16. The
regulations are silent, however, as to what procedures an
attorney-representative should follow if he or she has rendered services
in connection with concurrent title II-title XVI claims.

In claims under title II, § 404.1720(b)(2) of Regulations No. 4 provides
that SSA will determine a fee for a representative's services and §
404.1725(b) of Regulations No. 4 provides the evaluative criteria for
making such a determination. The same provisions in claims under title XVI
are provided in §§ 416.1520(b)(2) and 416.1525(b) of Regulations No. 16.
Again, the regulations are silent as to SSA's fee-setting responsibilities
in concurrent title II-title XVI claims.

Although attorney A rendered services in connection with two distinct
claims for benefits, some of which were devoted exclusively to the title
II claim and others exclusively to the title XVI claim, the issue critical
to both entitlement under title II and eligibility under title XVI was
that of disability, the definition of which is effectively identical in
titles II (section 223(d)(1)) and XVI (section 1614(a)(3)(A)) of the Act.
By virtue of this common definition of disability, the determination of
C's entitlement under title II and eligibility under title XVI was reduced
to a single substantive issue. A's services rendered to resolve that
common issue were equally applicable to both the title II and the title
XVI claims.

Consequently, A did not perform two sets of services that were different
in all respects. Although some of his services were unique to the title II
claim and others were unique to the title XVI claim, he performed one set
of services in regard to the central issue of disability which was
applicable simultaneously and in equal degree to both claims. To require A
to identify on one fee petition the services he performed for the title II
claim and to identify on a second fee petition the services he performed
for the title XVI claim would result, for the most part, in duplicate
listings of the same services on both petitions. If SSA were to authorize
separate fees based on evaluations of the two petitions, the practical
result would be authorization for attorney A to charge and receive a
duplicate fee for the same services. Further, the authorization of
duplicate fees in this case would make C liable for payment of fees in a
substantially greater amount than if one fee were authorized for all
services rendered in both claims. In summary, requiring A to submit two
fee petitions so SSA could set two fees could lead to a distorted account
of the services rendered and an inequitable result.

Accordingly, it is held that attorney A need submit only one fee petition
covering all the services he rendered in connection with both of C's
claims, and that SSA need determine only one fee for the combined services
rendered in both claims.

It must next be determined whether the single fee authorized for A's
services can be paid directly to A out of C's past-due title II benefits.
Section 206(a) of the Act, as pertinent here, provides that:

"Whenever the Secretary, in any claim before him for benefits under this
title, makes a determination favorable to the claimant, he shall, if the
claimant was represented by an attorney in connection with such claim, fix
... a reasonable fee to compensate such attorney for the services
performed by him in connection with such claim. If, as a result of such
determination, such claimant is entitled to past-due benefits under this
title, the Secretary shall ... certify for payment (out of such past-due
benefits) to such attorney an amount equal to whichever of the following
is the smaller:

(A) 25 percentum of the total amount of such past-due benefits,

(B) The amount of the attorney's fee so fixed, or

(C) The amount agreed upon between the claimant and such attorney as the
fee for such attorney's services."

However, section 1631(d)(2) of the Act provides no authority for direct
payment out of past-due benefits for fees for services in connection with
proceedings under title XVI. In fact, § 416.1520(c)(3) of Regulations No.
16 states explicitly that SSA is not responsible for the payment of fees
it approves for representation in proceedings under title XVI.

It is clear, therefore, that any part of A's fee attributable to services
that were rendered exclusively in connection with C's title II claim must,
consistent with the provisions of section 206(a), be paid to A out of C's
past-due title II benefits. It is equally clear that any part of A's fee
attributable to services that were rendered exclusively in connection with
C's title XVI claim cannot be paid directly to A out of C's past-due
benefits. However, A's services, for the most part, were concerned with
establishing C's disability, which was the common issue in both of C's
claims. A's substantive services, therefore, were rendered in connection
with both claims, and were unique neither to one claim nor to the
other.

Since section 206(a) requires payment of a fee out of title II past-due
benefits for all legal services reasonably required in prosecution of the
title II claim, it is irrelevant that some or all of such services were
rendered simultaneously in connection with a concurrent title XVI claim.
That such services were required and were rendered in connection with a
title II claim is sufficient basis for payment of the fee for such
services out of the title II past-due benefits.

Accordingly, it is held that the fee authorized for the services A
rendered in connection with C's concurrent title II-title XVI claims can
be paid out of C's title II past-due benefits, except for that portion of
the fee attributable to services rendered exclusively in connection with
the title XVI claim.

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